Issues concerning libraries and the law - with latitude to discuss any other interesting issues Note: Not legal advice - just a dangerous mix of thoughts and information. Brought to you by Mary Minow, J.D., A.M.L.S. [California, U.S.] and Peter Hirtle, M.A., M.L.S. Follow us on twitter @librarylaw

August 16, 2009

The undiscussed danger to libraries in the Google Books Settlement

There is an awful lot to read and digest in the hundreds of pages in the Google Books Settlement, and librarians have been at the forefront in identifying important issues. Jonathan Band's excellent "Guides for the Perplexed" and the recent concern with privacy issues (see also EPIC's overview of the Settlement and privacy issues) are just two of the ways that librarians are striving to make a useful product even better.

Nevertheless, I have been surprised at the lack of discussion in the library community about what I feel is one of the most problematic features of the settlement: printing fees in the Public Access Service. The Public Access Service is the free license that every public library can receive that allows that library to access the proposed books database from one of the library's computers. Users are allowed to view the entire text of the book (unlike the Consumer Purchase model, which only allows you to see up to 20% of the book without paying), but they are not allowed to download the book. Users can, however, print out pages from the book.

Here is the kicker: if the library charges a fee for printing (and how many libraries can allow users to print for free?), then they are required by Section 4.8(a)(ii) of the Agreement to charge users for the printing. Google will collect the money on behalf of libraries and pass it on to the Registry. Google has agreed to pay the cost of the printing for the first five years or $3 million, whichever comes first.

It is standard practice in many libraries to charge for the cost of paper and toner associated with printing from networked resources. I cannot think of a single licensed resource, however, that also wants libraries to pay a use fee for that printing. It is the equivalent of not only having users pay for costs of photocopying, but also having to send a royalty check to the Copyright Clearance Center for every page they print. And note that there is no provision for fair use in this requirement - printing even one page will result in the payment of a royalty to the Books Rights Registry.

The privacy implications of this requirement are tremendous as well. Google could require users to provide identification and a credit card to pay for the printing, with obvious implications for reading anonymously. But if they were going to do this, the feature could have been implemented as part of the Consumer Purchase model; there would be no reason to limit it to Public Access Service subscriptions. So that means that somehow the libraries are going to have be involved, tracking the amount of printing that is done by users, capturing payments, and passing the money along to Google to give to the Registry.

Section 4.8(a)(ii) marks a radical change in the relationship between libraries and rights holders. Thanks to Section 108 of the Copyright Act, libraries are not responsible for royalties that may be required as a product of patron copying. As long as the library posts the proper notices and has no knowledge that violations are occurring, it also has no liability for potentially infringing acts by users. The Google Books Settlement overturns almost 75 years of law and practice and makes the library (or possibly Google, if it acts as an agent for the library) an active monitor of what its patrons choose to reproduce. And if the Books Rights Registry can demand this, other vendors will start requiring it as well. I imagine that in 10 years, every license agreement that libraries sign will stipulate a royalty for user printing, and mandatory licenses for photocopying may not be far behind.

Privacy, anti-trust, and orphan works are important issues. But am I wrong in thinking that this innocuous-sounding little clause in the middle of the Agreement may do more to change the way libraries operate than other element of the Settlement?

Comments

Karen, the Public Access Service is a mixed bag alright. I assume that it was included in the settlement as a way of trying to make Google and the plaintiffs look like they had the public's interest in mind, but of course it is structured in such a way that no library may actually use it. It reminds me a bit of Section 1201(d) in the DMCA, which allows a library to hack into a commercial system in order to decide if it wants to subscribe to that system. No librarian was ever asked whether this was something we wanted. Similarly, the settlement would have been tons better if librarians had been active participants in the negotiation.

Having said that, I do need to come to Google's defense a little bit. They are offering to libraries something that they don't have now - namely free access to the full text of possibly 10 million books. Maybe this is a gift horse we should look in the mouth, but I can't fault them for wanting to give us a gift.

And to answer some of your questions, public libraries can purchase an institutional subscription (and up to two public libraries can be part of the institutional subscription beta testing). Since not having to pay for printing is part of an institutional subscription, then the public library could avoid the printing fees by subscribing instead of using the free Public Access Service.

The one limitation on the Institutional Subscription for public libraries is that there is no remote access included except with the Registry's approval: see Section 4.1(a)(iv) of the Settlement agreement. Since this is in the pricing section on the institutional subscription and since remote access can be offered with the Registry's approval, my guess would be that the Registry has no idea at this time of how to price remote access in public libraries when, sometimes, patrons can be anyone in an entire state (or maybe country). I would assume that this will be a feature in the future.

Excellent topic. Librarians, this is all the more reason to be diligent about retaining and preserving our hard-copy holdings.

The bottom line is: for-profit enterprises exist to make a profit. If they don't make money, they go out of business. When we "partner" with for-profit enterprises, by default we WILL pay, one way or another.

Just to point out that in general public libraries are disadvantaged in the Google settlement. Yes, they get one "free" terminal per building. (Imagine managing that in a large main library!) Unlike educational institutions (who must pay for access) public libraries cannot provide remote access to their Google Books service. This means that users must go into the library building to use a resource that resides on a global, ubiquitous network. It is not clear in the wording of the settlement if 1) public libraries can purchase additional access; 2) if they do purchase such service whether it will be under the same rules as the education license, e.g. whether they will be allowed to provide remote access; and 3) if they would have to continue to pay printing royalties on any additional "seats" they purchase.

The upshot is that the public normally served by public libraries for access to hard copy and electronic resources is being singled out for a lower level of service. I have been told that this reflects the AAPs general feeling that public libraries are a threat to the publishing business.

John, you raise a good point that there might be workable solutions that could protect patron privacy. Two concerns, however. First, this is one more imposition on the public libraries that want to use this supposedly "beneficial" perk included in the settlement. In addition to freeing up a computer to access Google, now you have to provide a dedicated printer as well. Second, the Settlement says that Google must design the Public Access Service to allow printing and that Google will collect the printing fees. Google could design the system to ignore the library's existing reproduction fee mechanisms and instead have a second method (such as credit cards or PayPal) for the royalty fees.

Most of all, though, I am worried about the precedent this sets for other library reproductions. I realize that the Public Access Service is different in that the library does not own the material to start with. If this is a fee that is due because the Public Access Service user now has access to a title that was not in their library before, then the printing fee should be going to the library that holds that title (much as you sometimes have to pay to get an ILL copy). If the fee is going to the Registry because of copyright, then I think it sets a very dangerous precedent for libraries.

The precedent for other services may be worrisome, but for any library using a dedicated terminal for the public access service (which, if its popularity is as predicted, would be useful), there seems to me a simple solution to the privacy problem: make that dedicated terminal use a dedicated printer, with a different per-page charge from the other printers.

(So, if most black and white printers in the library cost 10 cents per page, and the royalty as set by the BRR is 5 cents per page, the terminal's printer will be priced at 15 cents per page.)

Many libraries are already set up for differential printing costs (some, for instance, have color printers that cost more than B&W printers). This would seem to fall into the same category. Neither Google nor the library would need to know who printed what; just that so many pages were printed from that termimal.

Thank you for bringing this up as it is not something our library is even aware of. I am not even sure the Google Books situation is even being discussed much on the state level. How can we when we are so busy trying to survive budget cuts?

In any event, there are existing services for which this is already a problem. Consider Netlibrary, Overdrive, and soon Amazon Kindle style services. In some ways these kinds of services nullify the privacy protections of the Patriot Act. In others, it balloons the cost requirements to run a library. In others, it exploits the concept of copyright and public domain and morphs it into a contractual license agreement that few patrons will read. I am rather frustrated with the power grab and control over information that is being forced on libraries. Libraries exist as a repository of knowledge which is supposed to be freely available to the people. I think we are quickly losing a national treasure.